The Judicial Reaction to Kelo

Kelo v. City of New
London
was one of the most controversial decisions in Supreme Court history,
generating a massive political backlash that led 43 states to adopt eminent
domain reform laws restricting economic development takings of the kind the
Court ruled were constitutional. In addition to the better-known legislative
reaction, Kelo was also followed by extensive additional property rights
litigation in both federal and state courts. This is the first article to
systematically analyze the judicial reaction to Kelo.

Part
I briefly summarizes Kelo and its
holding. Part II considers state court interpretations of their state
constitutional public use clauses since Kelo.
Most of these cases have repudiated Kelo,
either banning economic development takings outright or significantly
constraining them. Part III considers judicial interpretations of Kelo’s “pretext” standard. This is the
one area where Kelo might potentially
permit nontrivial public use constraints on condemnation. Kelo indicated that condemnations are unconstitutional if the
officially stated rationale for the taking is a pretext “for the purpose of
conferring a private benefit on a particular private party.” State and lower
federal courts have not come to any consensus on what qualifies as a pretextual
taking. Nevertheless, several decisions suggest that the pretext standard may
have some bite.

Overall,
state courts have taken a skeptical view of Kelo,
often rejecting it as a guide to the interpretation of their state
constitutions. This reaction continues the pre-Kelo trend of increasing judicial protection for property rights at
the state level.